PAUL GODLEY v. CITY OF NEWARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4271-10T4

A-4497-10T4

PAUL GODLEY and

EICHEN LEVINSON &

CRUTCHLOW, LLP,

Plaintiffs-Appellants/

Cross-Respondents,

v.

CITY OF NEWARK and

NEWARK POLICE DEPARTMENT,

Defendants-Respondents/

Cross-Appellants.

_____________________________

DAVID LAMARR,

Plaintiff-Appellant/

Cross-Respondent,

v.

CITY OF NEWARK and

NEWARK POLICE DEPARTMENT,

Defendants-Respondents/

Cross-Appellants.

 

___________________________________________________________

July 29, 2013

Argued November 26, 2012 - Decided

Before Judges Graves, Espinosa, and Guadagno.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket Nos.

L-5963-07 and L-10579-06.

William O. Crutchlow argued the cause for

appellants/cross-respondents Paul Godley and

Eichen Levinson & Crutchlow, LLP (Eichen

Crutchlow Zaslow & McElroy, LLP, attorneys;

Mr. Crutchlow, on the brief).

Peter W. Till argued the cause for appellant/

cross-respondent David Lamarr (Law Offices of

Peter W. Till, attorneys; Mr. Till, on the

brief).

Victor A. Afanador argued the cause for

respondents/cross-appellants City of Newark

and Newark Police Department (Lite DePalma

Greenberg, LLC, attorneys; Mr. Afanador, of

counsel; Bruce D. Greenberg, Susana Cruz Hodge,

and Danielle Y. Alvarez, on the brief).

PER CURIAM

These consolidated appeals involve indemnification issues arising from the shooting of plaintiff Paul Godley by plaintiff David Lamarr, an off-duty Newark police officer, on July 27, 2003. Godley was seriously injured. The only question presented to the jury was whether Lamarr was acting within the scope of his duties as a police officer when he shot Godley. Following a week-long trial, the jury concluded the shooting did not arise out of and in the course of Lamarr's duties as a police officer.

On appeal, Godley and Lamarr primarily argue that the trial court erred in making certain evidentiary rulings. In addition, the City of Newark (the City) has filed a protective cross-appeal in the event we overturn the jury verdict. For the reasons that follow, we affirm the consolidated appeals and dismiss the cross-appeal.

At the time of the shooting, the Newark Police Department's manual of rules and regulations stated: "Police officers shall always be subject to duty even when periodically relieved from regularly scheduled duty." Additionally, the collective bargaining agreement between the City and the Newark Fraternal Order of the Police (FOP) stated:

Whenever any civil action is brought against any employee covered by this Agreement for any act or omission arising out of and in the course of his/her employment, the City shall defray all costs of defending such action, if any, and shall pay any adverse judgment, save harmless, and protect such person from any financial loss resulting therefrom.

 

On July 27, 2003, at 4:00 a.m., Lamarr ended his shift and left his precinct station in his personal vehicle. He drove to the Stephen Crane Housing Complex in Newark to visit Aida Vasquez.1 Lamarr was not in full uniform. He was wearing a baseball cap, a New York Yankees jersey, and his police-issued pants and shoes. He carried his weapon but no other police-issued equipment. Lamarr parked his vehicle in front of the complex and walked through the front door.

Vasquez worked the front desk of the complex as a security guard from midnight to 8:00 a.m. Lamarr previously had a romantic relationship with Vasquez. At the time of the incident, Lamarr claimed they were still friends, but Vasquez testified their relationship "was over," and she was dating Felicia Moens, who lived at the complex. When Moens testified, she confirmed she was dating Vasquez in 2003. However, they were no longer dating at the time of trial.

While Lamarr and Vasquez were talking, Godley entered the building through a side door and came down the hallway singing. Godley knew Vasquez since they were children and they were close friends, but they were never romantically involved. Vasquez introduced Godley to Lamarr by his nickname, "Nut." After Godley and Vasquez spoke to each other, Godley told Lamarr, "Before you leave, I need to holler at you." Godley then left the building through the side door.

A few minutes later, Lamarr went out the side door to see what Godley wanted, and Godley was sitting on a bench with Moens. Lamarr testified Godley approached him and told him to leave Vasquez alone because she did not "want to be bothered with [him]." Lamarr responded by telling Godley he should "consult with [Vasquez] because she invited me here." Godley replied, "I don't give a damn about that, I'm telling you you're going to leave her alone." Lamarr testified he attempted to walk to his vehicle but Godley was blocking him, and he had "his hands raised" as if he wanted to fight. At that point, Lamarr told Godley he was "a cop and if [Godley] didn't leave, he was going to get locked up." Lamarr also testified that at some point Godley said, "I don't give a fuck about you being a cop, I'll kill your punk ass."

When Godley testified, he admitted telling Lamarr there would be "problems for him" if he did not leave Vasquez alone. Godley also admitted he was "hot" that night, and told Lamarr, "You are the one who raped my dog."2 However, according to Godley, he was not "violent that night" and did not try to stop Lamarr from going to his car.

Vasquez testified the two men "were arguing back and forth," and she tried to stop the argument by grabbing Lamarr and walking him towards his car, which was parked in front of the building. Nevertheless, the two men continued to argue, and Lamarr again told Godley that if he did not leave, he would be arrested. Lamarr and Godley both testified Godley replied, "I don't give a fuck."

Lamarr testified Moens was "laughing and egging [Godley] on," and Godley agreed that Moens was "basically fanning the flames." According to Lamarr, when he reached his vehicle, Godley was "yelling from the sidewalk" and challenging him to fight. Lamarr said he drew his weapon because he felt threatened, and he told Godley, "Don't move." Lamarr testified he "saw a bulge under [Godley's] shirt" and thought Godley was reaching for a gun, so he fired one round hitting Godley in the abdomen. Lamarr said he was concerned for his safety and believed he "was acting in the capacity of [his] job."

Godley, on the other hand, testified he was wearing a tee-shirt that "was completely out of [his] pants," there was nothing under his shirt, and he "never made a threatening movement" towards his waist. In addition, Vasquez and Moens testified they did not see a bulge in Godley's shirt. Godley maintained that when he saw the gun, he tried to raise his hands above his head, but Lamarr shot him before he was able to raise his hands past his waist.

According to Godley, Lamarr was agitated and stated: "I'm the motherfucking police, nigger. I'll kill your motherfucking ass straight out." In addition, Vasquez testified that right before the shooting, Lamarr said, "You want to be a bad motherfucker, I'll show you how to be a bad motherfucker."

After Godley was shot, Lamarr called for assistance, and Godley was transported to the hospital. Lamarr and other police officers searched the area for a weapon, but none was found.

Lamarr was subsequently arrested and indicted for attempted murder, aggravated assault, and unlawful use of a weapon. The criminal case proceeded to trial, and a jury found Lamarr not guilty on all counts. The City also filed disciplinary charges against Lamarr that resulted in a twenty-eight-day suspension. He was then reinstated to his position as a patrolman.

In November 2004, Godley filed a civil complaint in the Law Division against Lamarr, the City, the Newark Police Department, and the Newark Housing Authority. The complaint alleged negligent and excessive use of force by Lamarr; negligent supervision, control, and training of Lamarr; and negligence by the Housing Authority for failing to provide proper security. In February 2005, the City removed the case to the United States District Court for the District of New Jersey (the Federal Action).3

On January 26, 2007, the district court granted summary judgment in favor of the City, the Police Department, and the Housing Authority, and dismissed all claims against them with prejudice. In the same order, the court denied Lamarr's motion for summary judgment.

After selecting a jury on June 6, 2007, Lamarr and Godley entered into a stipulation (the Stipulation) with respect to liability. The parties agreed that Lamarr "was acting exclusively in his official capacity" as a Newark police officer with regard to the events that occurred on July 27, 2003. In addition, Lamarr stipulated to liability for "all state law claims and the Section 1983 Fourth Amendment claims." Pursuant to the Stipulation, Lamarr assigned his "indemnification claims" against the City to Godley, and Godley agreed he would not "look to [Lamarr] in any way, shape or form" to satisfy the ultimate judgment. The parties also agreed that damages would be determined by the court without a jury.

Based on the proofs, including testimony from Godley's medical experts, the court entered a judgment in favor of Godley for $2,589,327.38. In a subsequent order, the court granted Godley's application for an award of attorneys' fees, and Lamarr was ordered to pay Godley the sum of $256,324.17.

In July 2007, Godley and his law firm, Eichen Levinson & Crutchlow, LLP,4 filed a complaint against the City, seeking indemnification for "all monies awarded against Officer Lamarr" in the Federal Action. The complaint alleged Lamarr was entitled to indemnification pursuant to the collective bargaining agreement between the City and the FOP, because Lamarr "was acting within the course of his employment as a Newark police officer at the time of the shooting." The complaint also stated that Lamarr had "assigned all of his rights to such reimbursement and indemnification to Paul Godley."

Lamarr filed a separate complaint against the City of Newark and the Newark Police Department (collectively the City) seeking "payment of all counsel fees and costs in connection with the defense of the Godley complaint" in the Federal Action. Both cases were consolidated for trial.

In a letter decision dated July 20, 2010, the trial court ruled it would honor the stipulation except for the provision that Lamarr "was acting exclusively in his official capacity" when he shot Godley, because that was a jury question. The court asked counsel to brief "the one issue which must be decided prior to the trial: what is the jury to be told about the reasons it is being asked to decide whether Officer Lamarr was acting within the scope of his duties." The court noted there were at least three possibilities:

a. The jury could be told nothing.

 

b. The jury could be told that if it finds that Officer Lamarr was acting within the scope of his duties, Newark would owe damages to Mr. Godley.

 

c. The jury could be told about the Godley v. Lamarr case and its settlement (perhaps without being told the amount of the damages set by [the district court]). This would enable the jury to understand (1) the effect of its decision, and (2) the possible explanation for some of the testimony given at depositions and trial. Such information would allow the jury the opportunity to better assess the credibility of the witnesses, which is one of its primary function[s].

 

The court heard oral arguments on November 30, and December 6, 2010, and ultimately ruled the jury should know what happened in the Federal Action except for the amount of damages recovered by Godley:

[T]he jury should be informed as to what happened previously in this case. Or in these related cases. I view this as a form of the ultimate outcome charge.

 

Putting aside the amount awarded by the federal judge and interest and so on, I don't think there is any reason the jury should know that.

 

I believe very strongly that it's best the jury have an understanding of what . . . its verdict would be, rather than a hazy, imprecise hint at what would happen. I think if we don't give them a statement they will be guessing and arguing with each other and speculating. I suspect by the end they will probably get 90 percent of the way there, but I don't think it's justice when we're allowing the jury to speculate and guess and surmise.

 

Prior to selecting a jury on December 7, 2010, the trial court read the following statement to the jury panel:

This is a civil case. It's not a criminal case, it's a civil case. It arises from a shooting that occurred at approximately 5:00 a.m. on July 27, 2003, at the Stephen Crane Housing Complex in Newark. The involved persons were Newark Police Officer David Lamarr and a man named Paul Godley, a resident of Newark.

 

Officer Lamarr had just finished his shift with the police department at 4:00 a.m. and was visiting [Aida] Vasquez, a woman with whom he had a sexual relationship. Ms. Vasquez worked at the complex as a security guard.

 

Mr. Godley, a longtime friend of Ms. Vasquez, stopped by to visit her sometime after Officer Lamarr had arrived. As Officer Lamarr was leaving after his visit, a confrontation ensued. The confrontation ended in the shooting of Mr. Godley by Officer Lamarr. Mr. Godley was seriously injured.

 

Now, Mr. Godley filed a civil complaint asserting claims arising from the shooting. The case was heard in United States District Court. That's a courthouse about four or five blocks from here. The city declined to defend Officer Lamarr in the suit on the grounds that the city believed that Officer Lamarr was not acting as a police officer when he shot Mr. Godley.

 

Officer Lamarr insisted he was acting as a police officer, the opposite. It will be up to you, the eight of you we chose, to decide if Officer Lamarr was or was not acting as a police officer.

 

Mr. Godley and Officer Lamarr entered into an agreement as to liability in the action in the federal courthouse. In this agreement, Officer Lamarr admitted to shooting Mr. Godley and Mr. Godly agreed that Officer Lamarr was acting as a police officer on July 27, 2003.

 

Now, in exchange for Officer Lamarr's admission of liability, Mr. Godley agreed that he would not look to Officer Lamarr for damages. Instead, Mr. Godley would only look to the city to pay the damages because Officer Lamarr assigned to Mr. Godley any rights that Officer Lamarr had under his -- fraternal order of police contract with the city, he had a right to have the city pay any judgment, quote "arising out of, in the course of his employment."

 

The agreement between Mr. Godley and Officer Lamarr was legally acceptable. After the agreement was reached, the federal judge, the other courthouse, assessed Mr. Godley's injuries and determined . . . the amount of damage he had suffered as a consequence of the shooting.

 

Now, what will be the job of the eight of you? The eight of you will have one job. It will be to determine if Officer Lamarr was acting in the course of his employment when he shot Mr. Godley. If the eight of you find that he was acting in the course of his employment when he shot Mr. Godley, the city must pay the damages set by the federal judge. If you find that he was not acting in the course of his employment when he shot Mr. Godley, the city shall not pay the damages.

Now, police officers are entitled to act to protect citizens and defend themselves, even when off duty. But it will be your job to decide if Officer Lamarr was acting in the course of his duties at 5:00 a.m. on July 27, 2003.

 

On December 14, 2010, the jury determined that Lamarr was not acting in the course of his duties as a Newark police officer at the time of the shooting. Thereafter, based on the contract between the FOP and the City, the court ruled that Lamarr was precluded from asserting "quantum meruit and unjust enrichment" claims against the City. A final judgment in favor of the City was entered on April 5, 2011.

On appeal, Godley presents the following arguments for our consideration:

POINT I

 

THE TRIAL COURT ERRED IN ADMITTING IRRELEVANT AND PREJUDICIAL EVIDENCE.

 

1. TESTIMONY AND EVIDENCE REGARDING THE FEDERAL ACTION WAS IRRELEVANT TO DECIDING WHETHER OFFICER LAMARR WAS ACTING WITHIN SCOPE OF HIS EMPLOYMENT.

 

2. TESTIMONY AND EVIDENCE REGARDING THE STIPULATION OF LIABILITY, THE ASSIGNMENT OF RIGHTS BY OFFICER LAMARR AND THE AGREEMENT BY PAUL GODLEY NOT TO SEEK DAMAGES FROM OFFICER LAMARR WAS IRRELEVANT AND UNDULY PREJUDICIAL.

 

3. TESTIMONY THAT PAUL GODLEY HOLDS A JUDGMENT THAT OFFICER LAMARR HAD NO RESPONSIBILITY FOR PAYMENT OF WAS IRRELEVANT AND SHOULD HAVE BEEN PRECLUDED.

 

4. THE TRIAL COURT ERRED IN PERMITTING IRRELEVANT AND PREJUDICIAL TESTIMONY REGARDING THE ALLEGED AND UNSUBSTANTIATED RAPE OF [AIDA] VASQUEZ.

 

In addition, Lamarr presents the following arguments:

POINT I

 

THIS COURT OUGHT PROPERLY VACATE THE JURY'S VERDICT AS THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR IN MAKING AND PERMITTING REFERENCES TO THE PRIOR FEDERAL CIVIL ACTION, AS SUCH REFERENCES WERE IRRELEVANT AND GAVE NO PROBATIVE VALUE TO THE ISSUE BEFORE THE TRIER OF FACT, PURSUANT TO N.J.R.E. 401.

 

POINT II

 

THIS COURT OUGHT PROPERLY VACATE THE JURY'S VERDICT AS THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN MAKING AND PERMITTING REFERENCES TO THE PRIOR FEDERAL CIVIL ACTION, AS, IN THE ALTERNATIVE, ANY PROBATIVE VALUE OF SAID REFERENCES WAS SUBSTANTIALLY OUTWEIGHED BY THE UNDUE PREJUDICE ON, POTENTIAL TO MISLEAD OR CONFUSE THE ISSUES BEFORE THE JURY, PURSUANT TO N.J.R.E. 403.

 

 

POINT III

 

THIS COURT OUGHT PROPERLY VACATE THE JURY'S VERDICT AS IT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND CONSTITUTED A MISCARRIAGE OF JUSTICE UNDER THE LAW.

 

POINT IV

 

THIS COURT OUGHT PROPERLY FIND THAT THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DISMISSING THE APPELLANT'S CAUSES OF ACTION SOUNDING IN QUANTUM MERUIT, AS THEY WERE NOWHERE PRESENTED, OTHERWISE CONSIDERED, NOR RESOLVED BY THE JURY'S VERDICT.

 

We have concluded from our review of the record and the applicable legal principles that these arguments are without sufficient merit to warrant extended discussion. Nevertheless, we add the following comments.

Godley and Lamarr both claim the trial court committed reversible error by allowing the jury to consider irrelevant and prejudicial information. They claim the trial court's statements and the testimony and evidence concerning the stipulation in the prior Federal Action "unavoidably diverted" the jurors from fairly evaluating the evidence. We do not agree.

Evidence is probative if it tends "to prove or disprove any fact or consequence to the determination of the action." N.J.R.E. 401. "[I]n making relevance and admissibility determinations," the trial court's exercise of its "broad discretion" will not be disturbed "absent a manifest denial of justice." Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif. denied sub nom., Lydon v. Silverman, 196 N.J. 466 (2008).

During pretrial argument, the court determined the jury should be told about the prior Federal Action and the stipulation. When counsel for Godley questioned how that information was relevant, the court stated it was necessary so that the jury would know "why people changed their positions," and why Lamarr and Godley (the shooter and the victim) were "cooperating with each other" to prove Lamarr was acting in the scope of his employment when he shot Godley. We agree the background information was relevant to the jury's credibility assessments, and we find no abuse of discretion by the trial court.

Plaintiffs also argue that the jury verdict should be set aside because Lamarr was not afforded "an opportunity to defend himself" against the unsubstantiated accusation that he raped Vasquez. According to Godley, the hearsay testimony regarding the alleged rape of Vasquez "contributed to a prejudicial and baseless assessment of Officer Lamarr on issues of no relevance to the trial court proceedings." In addition, Lamarr argues "the allegation, regardless of its veracity or any subsequent instruction, [had] a tremendous negative prejudicial affect on the plaintiffs."

Immediately after Godley testified that Lamarr was the one who raped his "dog," the court instructed the jury as follows:

Members of the jury, listen to me carefully, please. This case concerns what happened between, you know, 4:15 and say 5:30 on July 27, 2003. Whether or not Officer Lamarr did or did not have sexual relations with Ms. Vasquez, voluntary or not, on a previous date is not relevant.

 

I don't mind the question and answer because I'm trying to understand everything that was said that night, but you're not to speculate because no one will ever know whether anything did or did not happen. It's just not relevant. All we care about is what each person said to each other and what each other person did that night.

 

. . . I know it's a very complicated case and there are bits and pieces all over, but our job more your job than mine . . . is to find out what happened that night.

 

The jury had to determine whether Lamarr was properly exercising his police powers or whether he was engaged in a personal dispute that escalated out of control. As the trial court recognized, it was essential for the jury to know exactly what happened and what was said immediately preceding the shooting. Moreover, the court's limiting instruction was sufficient to eliminate any undue prejudice. Accordingly, we find no abuse of discretion or reversible error by the trial court.

In his third point, Lamarr contends the jury's verdict should be vacated because "it was against the weight of the evidence and constituted a miscarriage of justice." Initially, we note that Lamarr did not move for a new trial based on the weight of the evidence. Therefore, this argument is not cognizable on appeal. R. 2:10-1. In any event, Lamarr's argument is without merit.

Trial courts are directed to grant a new trial after a jury verdict only if, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). That standard was not met here, and there is no basis for ordering a new trial.

In his fourth point, Lamarr argues the trial court erred in dismissing his quantum meruit claim seeking reimbursement and indemnification for his counsel fees and costs in the Federal Action. The trial court found that Lamarr's indemnification claim was governed by the FOP contract and, therefore, he could not recover under a quasi-contract theory such as quantum meruit. See Moser v. Milner Hotels, Inc., 6 N.J. 278, 280 (1951) ("An implied contract cannot exist when there is an existing express contract about the identical subject."). In addition, the court ruled that the City did not benefit from Lamar's legal representation in the Federal Action. We conclude that the trial court's decision was proper as a matter of law.

Plaintiffs' remaining arguments are without sufficient merit to warrant additional discussion. R. 2:11-3(e)(1)(E). Since we are affirming the April 5, 2011 judgment, there is no need to consider the City's protective cross-appeal.

The consolidated appeals are affirmed and the cross-appeal is dismissed.

 

 

1 The correct spelling is either Vasquez or Vazquez. We use Vasquez because she identified herself as Aida Vasquez-Martinez and testified she was recently married.

2 Godley explained that "dog" is a slang term for "friend" and that he was referring to Vasquez.

3 Godley v. Newark Police Dep't, No. 2:05-cv-00806 (D.N.J.).

4 Because the counsel fee award in the Federal Action is payable to Godley, we will refer to Godley and his law firm collectively as Godley.